Case CO/2062/2020, Wednesday, 14th October, 2020
The High Court held a Judicial Review permission hearing in Court 16 at the Royal Courts of Justice in London last week; The Queen on the application of Langton v Secretary Of State For Environment Food And Rural Affairs. The matter was before Mr Justice Cavanagh and the requirement was for parties to attend in person as opposed to via video conferencing.
The application for Judicial Review had been made earlier this year in response to the Defra policy guidance of 5th March 2020, signed off by Minister George Eustice “Next steps for the strategy for achieving bovine tuberculosis free status for England – The government’s response to the strategy review, 2018”. ‘Next Steps’ is the response to the expert review in 2018 by the Group chaired by Sir Charles Godfray. The claim was about Defra not taking up the main finding of the Godfray Report (GR) in respect of badger-related interventions. The report had very clearly identified a ‘more promising’ strategy of ‘periodic culling’; that is allowing for a two-year badger cull cessation period (to mirror conditions of the RBCT outcome) after four years of intensive badger culling and then applying a combination of badger vaccination and intensive culling, should bTB herd breakdowns persist.
The GR advice was also highlighted by the recent government position in another court case; a fresh decision to move away from badger culling in the essential actions to reduce bovine TB. This was something that FOI papers show both the Chief Vet and Natural England were anticipating last year, to begin in 2020.
During the hearing, and after both sides had outlined their points, Justice Cavanagh read out a lengthy judgement with just a few embellishments. His view mirrored the governments defence almost exactly. He said that the Secretary of State must ‘have regard’ to the GR, but was not obliged to accept its expert advice. He said that it would be wrong to characterise the GR as giving ‘recommendations’. This is quite extraordinary give the specific content of the text and the plain language of the overview summary at the start.
Referring specifically to paragraphs 6.51- 6.54 in the GR, he agreed with Defra that the difference between supplementary culling and periodic culling was merely one of ‘cost and convenience’. This is a misreading of paragraph 6.52 where the text implies periodic culling might bring about the same benefit as was seen in the RBCT, whereas Defra and the judge seemed to imply that the comparison was between periodic culling and supplementary culling, which it is not. Another extraordinary development.
A full hearing should have been granted but was rejected. The judge questioned whether a requirement to rework policy was worthwhile, as ‘relief’ (from a win for us) would not prevent the further use of supplementary culling licences. This rather missed the point that a continuation of the confused and unmeasurable approaches currently in place may do as much harm as good in the bTB fight; destroying the cattle industry.
It was also depressing to see Defra ‘s argument that cull area data needed to be analysed (modelled in comparison to non-intervention areas) for the value of badger culling to be appreciated. To Defra, raw data is no good, because it only tells you what is happening with disease levels in an area and not why, which is an absolute nonsense. Direct evidence of herd breakdown levels were said to be somehow insufficient, despite obvious face value performance of ‘all measures’ in cull zones, year-on-year being the rational measuring-stick for stakeholders and practitioners; not least farmers and vets.
What is the point of being told that badger culling is working when there is no change or an increase overall of herd breakdown incidence and prevalence in an area? Defra have created a policy where failure doesn’t exist. We maintain that it is dangerous and unlawful.
Acceptance and normalisation of a policy that has no stop button, has always been the problem with supplementary culling, with no capacity to ‘adapt and learn’ of any direct value of badger culling. This was made clear by the Chief Scientific Advisor in 2019 following the 130% hike in herd breakdowns in Gloucestershire and legal pre-action at that time. It seems we are locked into a system that is failing, yet pays people to model data to say it is a huge success, when it isn’t or cannot be said to be so. While keeping the ability to check secret from the public. Defra and now the courts say this a lawful approach when protected badgers are being shot in ever-growing numbers.
Finally, within the judgement there was a moment that was deeply disturbing, distracting even from the above considerations. It was that the government is entitled to make the decision not to adopt the findings of an expert review, for political purposes. These are the same words used in the ruling earlier this year by Justice Andrews with respect to a case brought by the NFU against the Secretary of State. In that case, the government’s decision to hold back for a year on culling in Derbyshire in 2019 was because it wanted to find ways to help to ‘tilt’ the bTB eradication policy in favour of badger vaccination. Something that the 2020 bloodbath of tens of thousands of mostly healthy badgers over the last six weeks shows has not happened either.
The ecological impacts part of the case was dismissed with brevity, a matter that will need taking up again soon once BTO and Natural England’s secret reports are exposed.
The government approach to badger culling is not just ineffective, it is indiscriminate and unaccountable. It treats wild animals as worthless pests and the protected designated sites where they live and roam as disposable. This at a time when wider awareness of the way in which we treat wild animals and wild places defines our ability to manage our countryside and climate successfully and against wider environmental catastrophe. Aspects of the decision made in this case will be further appealed.